OnMarket BookBuilds Pty Ltd and The Treasury (Freedom of information)

The Administrative Appeals Tribunal (AAT) considered an interlocutory application by OnMarket BookBuilds Pty Ltd (the Applicant) against The Treasury (the Respondent). The Applicant sought various directions and orders, including access to specific information within documents, the issuance of summonses for evidence, the exclusion of certain evidence, and a confidentiality order. The core of the dispute involved the Applicant's attempt to obtain information relevant to its case, balanced against the Respondent's claims of exemption and the need to protect certain information.

The Tribunal was required to determine four distinct issues: whether to grant the Applicant access to the entirety of confidentiality clauses within the documents in question; whether to uphold objections to issuing summonses for evidence from Dr Catherine Livingstone, Mr Josh Frydenberg, and Mr Isaac Rankin; whether to exclude a letter from King & Wood Mallesons dated 15 August 2022 from evidence; and whether to grant a further confidentiality order over a specific document. In considering these matters, the Tribunal had regard to its objective under section 2A of the AAT Act, which mandates a process that is accessible, fair, just, economical, informal, and quick, and proportionate to the importance and complexity of the matter.

The Tribunal's reasoning involved applying principles governing the issuance of summonses, which are analogous to those for subpoenas in courts, focusing on legitimate forensic purpose and the prevention of injustice. It also considered the specific provisions of the Freedom of Information Act 1982 (Cth), particularly sections 63 and 64, which govern the Tribunal's obligations to avoid disclosure of exempt matter and its powers regarding the production and inspection of exempt documents. The Tribunal noted that procedural fairness is situational and must be considered within the context of the FOI Act's restrictions.

Ultimately, the Tribunal refused the Applicant's requests for access to the full confidentiality clauses and for the issuance of summonses to the named individuals. It also refused to exclude the letter from King & Wood Mallesons from evidence. However, the Tribunal granted a confidentiality order in relation to specific paragraphs of a Tribunal document, restricting its publication or disclosure to the Respondent, their legal advisers, Tribunal members and staff, and transcription service providers, operating until further order.